By Caren Swanepoel, Gideon Heyns and Valeske Kelly, Managing Director and Directors of CSIP (Caren Swanepoel Industrial Psychologists), CSIP Heyns and CSIP Kelly. CSIP may be contacted on 067 930 5709 or admin@csip.co.za. Visit our website: https://csip.co.za/. Linkedin: https://www.linkedin.com/pulse/navigating-complexities-determining-minors
Introduction
Medico-legal cases often involve complex calculations to determine compensation for the injured party. In cases where a minor is affected, estimating their future loss of earnings adds another layer of intricacy. The process of predicting a minor's potential future loss of income due to an injury or disability can be challenging for several reasons. This article will delve into some of these intricacies and difficulties faced in assessing a minor’s future loss of earnings in medico-legal cases.
Long-Term Projections
One of the foremost challenges in estimating a minor’s future loss of earnings is the need to make long-term projections. Minors have their entire working lives ahead of them, and predicting career choices, advancement opportunities, and earning potential over several decades is a formidable task. An injury or disability can significantly alter these trajectories, making accurate projections even more challenging. Given the many uncertainties that experts are faced with regarding a minor’s future career and earnings potential, experts are required to make certain assumptions that cannot be reliably predicted at such a young age. It is thus of crucial importance to have qualified and experienced experts thoroughly assess all of the factors surrounding such a case to make the most informed projections, despite the uncertainties posed.
Career Uncertainty
Minors are still in the process of developing basic cognitive skills such as critical thinking, problem-solving, and abstract reasoning. Their understanding of the complexities of various careers is limited. Hence, their interests, abilities, and aspirations may change over time as their scholastic and career journey may take unexpected twists and turns. This career uncertainty makes it difficult to determine what field a minor might enter, the educational requirements for that field, and the potential earnings associated with it. As such, formulating a career and earnings scenario for a minor can rarely be based on a specific occupational field as their interests have not yet crystallized at such a young age and may still change over time. Given these uncertainties, minors’ future career and earnings potential is best quantified based on their academic/learning potential, providing insight into the level of education they hold the potential of achieving, which can be related to certain earnings levels based on market research. However, it's important to approach these evaluations as rough estimates rather than definitive predictions.
Educational Psychologists play an important role in providing guidance in this regard. However, while a child may hold the potential for attaining certain levels of education, factors such as finance and access to tertiary institutions may very well hinder the achievement of further qualifications. It is crucial for experts to equally consider a minor’s theoretical potential in relation to practical considerations in their environment that may support or inhibit the achievement of certain educational levels. Research is an important tool to support experts in determining the advancement rate of scholars towards tertiary education, despite holding the potential to do so.
Changing Economic Conditions
The economic landscape is constantly evolving. Factors like inflation, industry trends, and technological advancements can have a profound impact on future earning potential. Predicting how these variables will influence a minor's earning capacity over their lifetime is a daunting task. Research of a country's economic history and current and projected economic trends are important factors to consider in facilitating insights into a minor’s potential future opportunities. In the South African context, progression has been made to allow individuals from disadvantaged backgrounds to have access to tertiary education. However, only a small percentage of the population completes post-school qualifications despite the investments in changing the landscape for the youth of South Africa. As such, it is important for experts not to fall into the trap of ‘the golden child’ syndrome by assuming that all minors can achieve tertiary education despite their disadvantaged backgrounds.
Medical Uncertainty
In medico-legal cases, it is essential to consider the potential for medical improvements or interventions. Advances in medical science and technology may provide opportunities for the minor to regain some degree of functionality or adapt to their condition. It is thus important for the various experts involved to accurately diagnose the minor’s condition and limitations, the possibility of improvement, and the interventions that will be required in this regard. Depending on the minor’s age, it may not always be possible for various medical, functional, and psychological experts to assess the minor’s capacity and potential, and how an incident may have increased their vulnerabilities. As such, certain cases may require postponement until a later age for experts to perform a more thorough evaluation. Certain cognitive, psychological and physical limitations may become more evident as children progress through different stages of development. Waiting until the minor’s basic cognitive skills, as well as their emotional regulation skills, are developed, will produce a better informed and fair outcome of a claim for a future loss of earnings.
Subjectivity and Assumptions
Calculating a minor's future loss of earnings often involves making assumptions based on available data and expert opinions. These assumptions can introduce subjectivity and variability into the calculation, resulting in different estimates from different experts. Balancing these subjective elements with objective data is a challenging endeavour. In this regard, earnings experts (Industrial Psychologists) may not always use the same research and earnings framework resulting in dissimilar projected pre- and post-accident/incident postulations. It is important for these experts to remain objective based on their expertise and the information at hand to reach a fair agreement in this regard.
Legal Complexities
Medico-legal cases involving minors are subject to additional legal complexities, including the appointment of guardians ad litem, court approvals, and trust fund establishment to safeguard the minor's interests. These legal procedures can add layers of complexity to the calculation of future loss of earnings. Most often the legal guardians/parents of a minor, assuming the role of the claimant, do not have adequate clarity with regard to how the monetary compensation for a minor proceeds, expecting such compensation to be paid out to them. It is thus important for their legal representatives to educate parents/legal guardians on these matters. Navigating these legal complexities requires a thorough understanding of applicable laws, regulations, and the best interests of the child. Legal professionals must ensure that financial claims for children are handled in a manner that protects their rights and well-being.
Golden rules for attorneys referring minors to experts:
A minor younger than 18 years must be accompanied by an adult.
Proof of guardianship must be provided, especially in a Loss of Support /Negligence matter should the claim be logged by a relative (excluding biological parents)
Always include school reports / academic records if applicable.
Conclusion
Estimating a minor's future loss of earnings in medico-legal cases is undoubtedly a challenging task. The process requires a delicate balance of objective data, expert opinions, and the recognition of numerous uncertainties. To navigate these complexities, it is crucial to involve experienced professionals who can provide a comprehensive assessment while considering the unique circumstances of each matter. Collaboration between medical experts, vocational experts, and legal professionals is necessary to arrive at a fair and accurate estimation of a minor's future loss of earnings.
Ultimately, while challenges abound in this process, it is essential to remember that the goal is to ensure that minors who have suffered injuries or disabilities receive just compensation to support their future needs and opportunities to the greatest extent possible, even in the face of these daunting challenges.
For more information, contact us:
CSIP (Caren Swanepoel Industrial Psychologists)
The opinions expressed in this article are the author’s own and do not necessarily reflect the view of Lexinfo CC.
Posted: 23 August 2023